Facts: The defendant had been a caretaker at a block of flats from 1973 to 2009. He was provided with an apartment as part of his remuneration. After retiring in 2009 he rented the flat under a standard contract.

The defendant was and is a smoker, consuming about 15 cigarettes a day. It was admitted (but later denied) that he had allowed cigarette smoke to escape into the stairwell and other parts of the building rather than allowing it to escape through open windows. It was found that his landlord had repeatedly warned him verbally and in writing about the escaping odour from 2012.

The plaintiff sought the defendant’s eviction on the basis that cigarette smoke was passing into the stairwell of the apartment building and was allegedly a health hazard for other residents. The eviction was upheld: Proprietor v Adolfs (Düsseldorf District Court, Rundel J, 31 July 2013). The defendant appealed.

Held: Dismissing the appeal, that –

1. The fact that a tenant smokes in their apartment is not a breach of their tenancy contract.

2. However, other tenants in the building were not to be expected to endure “unacceptable and intolerable odour”.

3. The defendant was in breach of his tenancy agreement by failing to take adequate steps to prevent cigarette smoke from entering the common areas of the building by not airing his home and not emptying his numerous ashtrays. This provided a sufficient basis to terminate his tenancy.